COMMONWEALTH v. BEST

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Complaint received and
sworn to in the Roxbury Division of the District Court Department
on November 1, 1994.

The case was tried before Gregory
L. Phillips, J.

Alexander M. Esteves for
the defendant.

Rami M. Vanegas,
Assistant District Attorney, for the Commonwealth.

PORADA, J.

The defendant was convicted of distribution of
heroin in a jury trial in the District Court. Among his several
claims of error on appeal, he argues that the judge erred in
allowing a police officer to testify to a codefendant’s prior
arrest for a drug offense and in allowing a police officer to
testify to the defendant’s daily presence in an area where the
police officers conduct sweeps for drug dealers and make the
majority of their arrests for drug offenses. The defendant also
claims that the judge erred in admitting in evidence the police
report pertaining to the defendant’s arrest and the bag of heroin
allegedly sold by the defendant and in excluding from evidence
photographs of the crime scene. Finally, the defendant asserts
that the prosecutor committed reversible error in his closing
argument. We affirm the judgment.

We summarize the evidence presented to the
jury. Officers Roy Frederick and George Cardoza, members of the
Boston police department’s drug control unit, were conducting a
surveillance of the Dudley triangle area in the Roxbury section
of Boston on October 31, 1994, at about 6:00 P.M.
Frederick was seated in the passenger’s seat, and Cardoza was
driving. As their unmarked car came down Ziegler Street,
Frederick saw two people whom he knew at the corner of Ziegler
Street and Harrison Avenue. One was David Montero,[1] whom Frederick knew from a prior arrest for possession
of heroin, and the other was the defendant, with whom Frederick
had grown up and whom he had seen almost every day in that area.
As the officers drove by, Frederick, who was about three feet
from where Montero and the defendant were standing, saw Montero
hand the defendant an unspecified amount of currency, which the
defendant took. The defendant then handed Montero a clear,
light-colored glassine bag containing white powder, which Montero
grasped in his right hand. Cardoza also saw the exchange between
Montero and the defendant but did not see what the defendant
handed Montero. After the exchange, the defendant and Montero
walked down Ziegler Street toward Warren Street in the direction
from which the officers had come.

The officers then drove away, parked their
unmarked car on a neighboring street, and waited on foot on
Warren Street for the two men to approach. When they spotted
Montero, Frederick seized him and searched him. In Montero’s
right fist, Frederick found a light-colored glassine bag with
white powder, which appeared to be the same one that he had seen
the defendant hand Montero. Montero was placed under arrest for
possession of heroin. Frederick and Cardoza then proceeded to
search for the defendant but did not find him. The defendant was
arrested on a warrant some two weeks later. The white powder
seized from Montero was subsequently analyzed as heroin.

On cross-examination of Frederick, the
defendant posed questions about whether Frederick disliked the
defendant because Frederick felt the defendant had been a bad
influence on Frederick’s brother. Frederick denied that he
disliked the defendant and testified that he did not know whether
the defendant had been a bad influence on his brother.

The defendant’s sister, who testified on his
behalf, stated that the defendant stayed with her for three days
beginning on October 30, 1994, because he was seriously ill and
that, during that period, he just lay around her house and drank
soup. She also testified that October 31, 1994, was a Tuesday and
that she would have arrived home from work shortly after 5:00 P.M.,
at which time the defendant was at home with her and remained
there. When shown a calendar which indicated that October 31,
1994, was a Monday, however, she admitted that she would not have
arrived home until shortly after 7:00 P.M. but that
her son had told her that the defendant had been home all day on
that date.

The defendant failed to appear for the second
day of the trial, and the judge instructed the jury that, if the
Commonwealth proved that the defendant had knowingly absented
himself from the trial, the jury were permitted, but not
required, to draw an inference against the defendant.

We now address each of the defendant’s claims
of error.

1. Evidence of codefendant’s prior drug
arrest. In response to an inquiry whether Officer Frederick
recognized the person with the defendant, Frederick responded,
"It’s a gentleman who we had arrested prior." There was
no objection to the answer or motion to strike the answer. Then
the prosecutor queried Frederick anew whether he had arrested
Montero before. Frederick responded: "[a]pproximately two
months before." At that point defense counsel objected, and
an inaudible sidebar followed. Subsequent to the sidebar, the
judge allowed the officer to testify that Montero had been
arrested a month or two before. Following this testimony the
prosecutor asked what Montero had been arrested for, and
Frederick responded it was for possession of a Class A drug,
heroin. The defendant did not object to this answer or move to
strike. In subsequent testimony over the objection of the
defendant, Frederick also testified that, following Montero’s
arrest on October 31, 1994, Montero had been found guilty of
possession of heroin.

The defendant argues that this evidence was
inadmissible because it was hearsay or evidence of a prior bad
act. The Commonwealth concedes that it should not have been
admitted but argues instead that it was not prejudicial. There is
no question that the police officer should not have been
permitted to testify that the codefendant had a prior arrest for
possession of heroin. See Commonwealth v. Kennedy,
426 Mass. 703, 709 n.5 (1998) (while evidence of a prior arrest
of a codefendant may be admissible at a motion to suppress
hearing in determining probable cause to arrest the defendant,
such evidence would not be admissible at trial to establish the
defendant’s guilt). See also Brinegar v. United States,
338 U.S. 160, 173-174 (1949). Such evidence tainted the defendant
with guilt by association and was not relevant to prove the
defendant distributed heroin. Because the defendant, however, did
not object to the officer’s initial testimony that Montero had a
prior arrest or to his subsequent testimony identifying the
arrest as one for possession of heroin, our standard of review is
one of substantial risk of a miscarriage of justice. Commonwealth
v. Freeman, 352 Mass. 556, 563-564 (1967). We must then
decide whether the admission of this evidence materially
influenced the jury’s verdict. Commonwealth v. Alphas,
430 Mass. 8, 13 (1999).

We conclude that this evidence would have had
but very slight effect upon the jury’s verdict because of the
strength of the Commonwealth’s case, Commonwealth v. Miranda,
22 Mass. App. Ct. 10, 21 (1986), and would not have damaged the
alibi defense advanced by the defendant, Commonwealth v. Anderson,
396 Mass. 306, 316 (1985). Here, two experienced police officers
testified that they saw the defendant, whom they knew and
recognized, hand an object to Montero in exchange for money.
Minutes later, Frederick seized a glassine bag from Montero’s
right hand. Frederick recognized the bag as the same one he had
seen the defendant hand to Montero, who took it in his right
hand. The bag contained heroin. Frederick testified that the
exchange between the defendant and Montero was consistent with
the purchase of drugs. In light of this evidence, we do not think
it is plausible that the result might have been otherwise but for
the testimony regarding Montero’s prior arrest. Commonwealth
v. Miranda, 22 Mass. App. Ct. at 21.

Also, as the Commonwealth argues, part of the
defendant’s strategy was to claim that he had been framed by the
police officers because Frederick held the defendant responsible
for the troubles of Frederick’s brother. Although the defendant
produced no substantive evidence to support this theory, the
admission of this evidence, which defense counsel elicited again
and again in cross-examination, enabled the defendant to argue to
the jury that Montero was a likely target for the frame-up
because the officers knew it was probable that they could find
drugs on him.

In sum, even if we were to apply the less
onerous prejudicial error standard of review, which the
Commonwealth and the defendant relied upon in their arguments, we
can say with fair assurance that the error had but very slight
effect on the jury’s verdict and, in any event, did not create a
substantial risk of a miscarriage of justice. Commonwealth
v. Alphas, 430 Mass. at 13-14 & n.7.

We also decide it was error for the judge to
allow a police officer to testify that Montero was found guilty
of possession of heroin based on his arrest on October 31, 1994. Commonwealth
v. Tilley, 327 Mass. 540, 548 (1951). Because the
defendant objected to this testimony, the standard of review is
whether the error was prejudicial. Commonwealth v. Alphas,
430 Mass. at 13 n.7. Because the jury had already been apprised
of Montero’s arrest for this offense and because of the strength
of the Commonwealth’s case and the nontoxic effect of this
evidence on the defendant’s claims of alibi and frame-up, we can
say with fair assurance that the erroneous admission of this
evidence "did not influence the jury, or had but very slight
effect." Commonwealth v. Flebotte, 417 Mass.
348, 353 (1994), quoting from Commonwealth v. Peruzzi,
15 Mass. App. Ct. 437, 445 (1983). As such, the admission of this
evidence did not create prejudicial error requiring reversal.

2. Evidence of the defendant’s daily
presence in an area associated with drug activity. The
defendant argues that it was error for the judge to allow
Frederick to testify that he saw the defendant "[i]n the
same area [where the alleged drug sale took place] just about
every single day prior to that night" and thereafter to
testify that they patrolled the area because of the
"overflow from the Mission Hill sweeps" and that they
made the "majority of [their drug] arrests in that
area." His argument does not merit extended discussion
because, after reciting the testimony, the defendant’s argument
consists of two lines and a one-sentence conclusion citing no
legal authority. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921
(1975). See Commonwealth v. Hrycenko, 417 Mass.
309, 319 (1994) (defendant’s argument does not merit extended
discussion where he failed to support his specific argument with
any case or statutory citation).

While it is true that a person cannot be
convicted by proof of guilt by association, Commonwealth
v. Szemetum, 3 Mass. App. Ct. 651, 653-654 (1975); Commonwealth
v. Gonzalez, 47 Mass. App. Ct. 255, 259 (1999), evidence
that a particular area is known for drug dealing is one of many
factors that can be considered in determining whether a drug
transaction occurred. See Commonwealth v. Rivera,
425 Mass. 633, 649 (1997) ("area known for drug
dealing"); Commonwealth v. Pena, 40 Mass. App.
Ct. 905, 905 (1996) ("high incidence of drug dealing").

Also, because Frederick’s testimony about the
"overflow from the Mission Hill sweeps" was elicited
initially by the defendant during cross-examination and the
comment by Frederick to which the defendant objected was merely a
reiteration of that testimony, defendant’s claim of error is
unavailing. See Commonwealth v. Kaste, 4 Mass. App.
Ct. 589, 592 (1976) ("the exception would avail the
defendant nothing, as testimony substantially to the same effect
had been elicited by the defendant from the witness in earlier
cross-examination"). We also view Frederick’s testimony that
the majority of their arrests in that area were for drug offenses
as simply cumulative of his description of the area as one
infiltrated with drug dealers. The admission of this evidence was
not error.

Frederick’s testimony that he saw the defendant
in that area every night is more problematic. See Commonwealth
v. Szemetum, 3 Mass. App. Ct. at 653 (it was error to
admit the testimony that the defendant had been seen in the area
on previous occasions where arrests had been made for the sale of
heroin). Nevertheless, unlike the Szemetum case, there was
no objection by the defendant to this testimony, and the evidence
was relevant to buttress the police identification of the
defendant because of the alibi defense and to explain the police
officers’ apparent confidence that they would locate the
defendant without immediately pursuing him after the offense. In
addition, this testimony was elicited by the prosecutor in his
direct examination of Frederick. The testimony of Frederick
regarding the infiltration of drug dealers in the Dudley triangle
area and that the majority of the officers’ drug arrests are made
in that area was elicited by the prosecutor on redirect
examination, but only after Frederick had testified under
cross-examination concerning the overflow of drug dealers into
this area as a result of the sweeps. There was, thus, no attempt
by the prosecutor to juxtapose this testimony. In these
circumstances, we do not consider this evidence suspect as guilt
by association evidence. Commonwealth v. Gonzalez,
47 Mass. App. Ct. at 259. There was no error and certainly, if
error, no substantial risk of a miscarriage of justice.

3. Other claims of error. The defendant
claims that the admission of the police report in evidence was
error because it contained prejudicial hearsay evidence. However,
the defendant has failed to include in the record on appeal a
copy of the police report or elucidate in his brief those
prejudicial statements about which he complains. Such an omission
precludes our review. See Commonwealth v. Burns, 43
Mass. App. Ct. 263, 268 n.5 (1997), quoting from Commonwealth
v. Bernier, 366 Mass. 717, 720 (1975) ("[i]n order to
be entitled to have this court consider and decide an issue, the
defendant has the . . . burden of including in a record on appeal
all of the evidence, facts, or information pertinent to the
issue").

The defendant’s argument that the package of
heroin allegedly seized from Montero should not have been
admitted in evidence because the Commonwealth failed to lay a
sufficient foundation is without merit. Frederick’s testimony
about the procedures followed by him after the package was seized
and his subsequent identification of the package as the one
seized from Montero provided sufficient foundation for its
admissibility. "Any argument that the defendant may have had
with [Frederick's] authentication testimony concerned the ‘weight
and credibility of the evidence, a matter wholly within the
province of the jury.’" Commonwealth v. Ortiz,
424 Mass. 853, 860 (1997), quoting from Commonwealth v. Martino,
412 Mass. 267, 272 (1992).

Likewise, we decide that the judge did not
abuse his discretion in denying defendant’s request to introduce
photographs of the area where the exchange allegedly took place.
See Commonwealth v. Simmons, 419 Mass. 426, 430
(1995). The photographs in question were alleged to have been
taken in the daytime at 2:00 P.M., and the offense
allegedly took place in the nighttime at 6:00 P.M.
In those circumstances, the judge could properly conclude that
the photographs were not a fair and accurate representation of
the Dudley triangle area at the time of the offense. See Commonwealth
v. Weichell, 390 Mass. 62, 77-78 (1983), cert. denied, 465
U.S. 1032 (1984) (judge did not abuse discretion in excluding
photographs where there was no testimony that they accurately
represented "the condition of the lighting at the time of
the murder").

Finally, the defendant claims that the
prosecutor committed reversible error in his closing argument.
The defendant argues that, at the end of his closing, the
prosecutor exhorted the jury that it was their job to return a
verdict of guilty. However, the statement on which the defendant
relies contains an inaudible portion.[2] On the record
furnished to us, we cannot determine what was said. Because it
was the defendant’s obligation to furnish us with an adequate
record, we decline to consider the claim. See Mass.R.A.P. 8(c)
& (e), as amended, 378 Mass. 933-934 (1979). See also Commonwealth
v. Woody, 429 Mass. 95, 98-99 (1999) (burden is on the
appellant to settle the record if the omissions are material).

In any event, even if the prosecutor made this
comment as alleged by the defendant, the isolated statement would
not require reversal in light of the strength of the
Commonwealth’s case. See Commonwealth v. Davis, 38
Mass. App. Ct. 932, 934 (1995) (comment arguably suggesting that
it was jury’s duty to convict, standing alone, not prejudicial
where case against the defendant was strong).

Judgment affirmed.

FOOTNOTES:

[1]References to the codefendant in
this opinion are to Montero, who was tried separately from this
defendant.

[2] The statement as presented to us in the record is:
"I want to remind you that your job is (inaudible) return a
verdict of guilty."

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